R v Cook; Ex parte C

[1985] HCA 47

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ.

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI AGAINST THE HONOURABLE ADRIAN GEORGE HINGSTON COOK AND THE HONOURABLE JOSEPHINE MARY HIGHFIELD MAXWELL, JUDGES OF THE FAMILY COURT OF AUSTRALIA; Ex parte C. AND ANOTHER

(1985) 156 CLR 249

1 August 1985

Constitutional Law (Cth)

Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Custody of ex-nuptial child—Child of marriage—Ex-nuptial child deemed by statute to be child of marriage—Validity—The Constitution (63 &64 Vict. c. 12), s. 51(xxi)—Family Law Act 1975 (Cth), s. 5(1)(e)(i).

Decisions

GIBBS C.J.: This is the return of an order nisi for a writ of prohibition directed to two judges of the Family Court prohibiting them from proceeding further in an application brought by Mr and Mrs T. for the custody of a child and for a writ of certiorari quashing certain orders already made in the course of the proceedings arising out of that application. The prosecutors, Mr and Mrs C., are husband and wife. Mrs C. is the mother of the child, a girl now aged almost twelve, and is the daughter of Mr and Mrs T. Mrs C. was unmarried at the time when the child was born. Since the marriage of Mr and Mrs C. on 3 November 1979, the child has ordinarily been a member of the household of Mr and Mrs C. but, in January 1985, ran away to her grandparents and has since resided with them.

2. The question for our decision is whether the Family Court has jurisdiction to entertain the proceedings instituted by the child's grandparents, Mr and Mrs T. It will have jurisdiction if the provisions of par.(ce) of the definition of "matrimonial cause" in s.4(1) of the Family Law Act 1975 (Cth), as amended ("the Act") and those of s.5(1)(e)(i) of that Act are both valid. This Court has decided, in V. v. V. (unreported), which was heard immediately before the present case, that the provisions of par.(ce) are valid. The matter to be decided in the present case is, therefore, whether s.5(1)(e)(i) is validly enacted.

3. Some of the arguments addressed to us appeared to assume that the merits of the case and the welfare of the child were in some way relevant to the question which we are called on to decide. It should be made clear that this is not so. The Court fully understands how undesirable it is that proceedings concerning the custody of a child should be complicated by doubts as to jurisdiction. However, it is the clear duty of the Court to determine the limits of constitutional power unswayed by any sympathy that may be aroused by the facts of a particular case.

4. Paragraph (e) of s.5(1) provides as follows:

"For the purposes of each application of this

Act in relation to a marriage -

...

(e) a child of either the husband or the wife, including -

(i) an ex-nuptial child of either of…